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About Nungesser: The Man Emma Sulkowicz Reported For Rape

October 2, 2014

I already wrote about Emma Sulkowicz.  She reported a man to Columbia University for raping her, but the panel cleared him.  She went to the police, but they treated her poorly and did nothing.  Then she formulated a performance art piece, Carry That Weight, which has been widely covered and has received a great deal of support both within and without the university.

Her parents wrote a letter identifying the man she reported, and shedding significant additional light:  the same man, Jean-Paul Nungesser, was previously adjudicated responsible in an incident of violence sexual assault against a different female student, following her to her room and shoving her inside.  And Emma Sulkowics made her decision to report him after learning from other women about incidents indicating that his behavior was part of a pattern.  Here’s one thing they say:

3) The fact that Nungesser had previously been found “responsible” by a Columbia panel for following another Columbia student to her room, shoving his way in, forcefully pinning, and groping her was not allowed as evidence in Emma’s hearing. Just days before her hearing, Dean Valentini granted an appeal of this verdict, which re-opened the case and consequently disallowed it as evidence. This effectively hamstrung Emma’s case. (An aside: The final hearing for this other case was scheduled and held at a time the complainant had specified that she was not available to testify. Without her presence, the original panel’s “responsible” verdict was easily overturned.)

Much of what they say is about Rosalie Siler, the Columbia minion who acted as Sulkowics’ sole advisor and who, her parents say, essentially hindered rather than helped the presentation of the evidence of Nungesser’s misconduct.  One might suspect, given both that the grant of appeal managed to fortuitously keep the prior conduct out as evidence in Sulkowics’ hearing, and that the University scheduled the new hearing for a time when the complaining witness was unavailable, and that the Sulkowicss allege that Emma was advised not to get her own lawyer (though Nungesser had one) and that her advisor did more to interfere with her case than to present it, that this was an effort to protect Nungesser.

The social dimension of the current political moment is this:  universities are not willing to do much of anything to stop rape, but are willing to put quite a lot of effort into hushing it up, including putting a thumb on the rapist’s side of the scale in their adjudication processes.  That’s what Columbia here stands accused of.

California’s Affirmative Consent Law: Beyond The Bullshit

September 30, 2014
by

A federal judge once said to me, when I was just a young’un, that this is how you read a statute:  “from left to right; stop at punctuation.”  You don’t know what this thing says unless you read the text.  TL;DR from the headlines does not an analysis make.  So here is the pertinent text, the text of section (a), which is the part people are talking about:

(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
First, the plain language tells us that this statute is not a criminal law, or an obligation that the State of California imposes on any person directly.  It is, rather, a change to what California requires of colleges to be eligible for state financial aid.  So it doesn’t apply to any college that already forgoes aid for any reason, for example.  It has no impact of people who are not in college and not employed by a college, except in the sense that it may change the cultural conversation.  If you’re in high school, or not in school and working, or not in school and not working, or in the service, or in any other walk of life except attending college in California, this has no legal effect on you.
Second, all it requires is adoption of a policy that the school is required by federal law to have, and that that policy contain certain elements unique to this statute.
Subsection (a)(1)
One of the unique elements, the Affirmative Consent standard, is set forth here, and it isn’t what some people seem to be assuming.  The common rhetorical device is that affirmative consent requires some particular form of communication — notarized contract, filled out in triplicate, raised seal, etc.  Far be it from  me to criticize anyone whose kink is to have a bunch of suit-wearing functionaries watch their sexual encounters.  De gustibus non disputandum est, which I think is Latin for “your kink is not my kink but your kink is okay.”  However, the idea that that’s what the statute requires is just bullshit.  It’s not in there.
Here’s the heart of it: ” “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.”  (Emphasis supplied.)  It doesn’t say what form it has to take, or how one has to ascertain it.  It doesn’t say anything about filling out a form, using an app, signing a waiver.  It doesn’t even say you have to say any particular word.  It doesn’t even require the word “Yes”!  It just says that the absence of “no” isn’t necessarily yes, and it’s your responsibility, if you’re a student in a college in California, to make sure you have a yes.  You can do that any way you like; it’s up to you how to see if you  have a yes.
There are lots of ways to ask for a yes.  If you lean in to kiss someone and they lean in to kiss you back, that’s yes.  If you ask someone if they want your cock and they say, “I want your cock,” that’s yes, and if they put their mouth on it, that’s yes, too.  If you’re fucking someone and holding them down and you’re both sweating and maybe bruised and you lean in and your hand is on their throat and you say, “can you still say no?” and they say, “yes,” that’s yes.  We’re not kids here, right?  We’ve all been there, and we know that people say yes, mean yes, shout yes and do yes in sex all the time.  Those of us who don’t want to force anyone to do anything they are not into, don’t want or need sexual encounters where people are not doing yes as hard as they can.
The rest of (a)(1) is pretty straightforward — it simply lists myths that won’t fly.  Consent to sex with someone one time isn’t consent to sex with that person every time.  Shouldn’t be controversial.  The absence of no isn’t yes.  Since people who are passed out can’t say no or yes, this should be obvious, and  is impossible to intelligently argue against.  I know CeeLo Green said otherwise, but that’s because CeeLo is a very bad person (and now, a convicted felon). Good vocalist, bad person, sorry to break it to you. Consent can be revoked at any time.  Again, impossible to intelligently argue with.  People are free at any time to decide the sexual encounter is not working for them, put on their c lothes and go get a slice of pizza.  This is not up for debate.
Subsection (a)(2)
Another element in section (a) is the standard in the disciplinary process in (a)(2).  It’s not a defense to say you believed  someone consented:
(1) because you were too drunk or too reckless to know whether they were consenting or not.  Good rule, right?  If I’m so fucked up that I may rape someone, that’s kind of like being so fucked up that I shouldn’t drive home because I might crash.  It was an adjustment for a lot of people when we began actually enforcing drunk driving laws in this country!  People said, “but how am I supposed to get home from the bar!”  And we all decided that not having drunks kill and maim people was important enough to make them take responsibility for how they get their drink on, and we did, and the republic did not fall.
(2) because you didn’t bother to find out if you had a yes.  This is the teeth that makes (a)(1) work.  If you know you have a yes, you’re good to go.  If you don’t know you have a yes, it’s on you to find out.  If you don’t, and this is important, if you acted reasonably to find out, you’re still okay.  Reasonably under the circumstances is a hard standard to argue against.  The only ways to argue against it are either (a) I want to act unreasonably and it should be okay, or (b) what I think is reasonable is not what the people enforcing this think is reasonable.
The nightmare scenario that rape apologists trot out is the one that Katie Roiphe made up (because she lives her life to piss on everything her mother stands for), the “morning after regret.”  I think it is impossible to find a case where someone was convicted of rape because one of their consenting partners later claimed nonconsent — in all the terrible history of black men being falsely accused of rape, almost always there was no actual sexual contact at all, and the rape was simply a socially convenient fabrication from whole cloth.  See the Central Park Jogger case, where the teens convicted and imprisoned had no contact at all with the victim — who was hit over the head and raped by an entirely different person, who was a serial rapist and died in prison.   In instances of political hoaxes like Brawley, likewise the events never transpired, and in the Duke Lacrosse case one of the accused was demonstrably not on the premises.  Amanda Marcotte has repeatedly thrown down the gauntlet (see comments, she’s said this before) for someone to identify an instance of false conviction arising from an actual sexual encounter between the accuser and the convicted defendant.  Nobody seems to have one.
This law protects against that scenario, fanciful as it might be.  If you act reasonably under to circumstances to see if you have a yes, you’re okay.
The Power And The Danger Of “Reasonable Steps”
That phrase, “reasonable steps, in the circumstances known … at the time” is, not incidentally, the weakness of this bill.  Law doesn’t interpret or execute itself, and this will  be interpreted by conduct counsels and deans in colleges, and “reasonable” will be what they think it means.  I’m not worried that someone who says  “hey, are you still into this” and gets “yeah” will be held to have acted unreasonably.  Sure, the perpetual whinge machine of MRA outrage will declare that “reasonable” will mean mind reading or seeing the future or having a notarized contract or some such nonsense.  But that’s like Christian extremists who complain that they are being discriminated against because they can’t bully gay kids in school — they have a persecution complex which has no relationship to objective reality.  Given colleges’ infamous disinclination to hold rapists accountable or adjudicate them liable, there is no reason to suspect that the interpretation of “reasonable” with be anything other than a mainstream-friendly view of “reasonable.”
I am worried that some asshole’s approach to consent will be, “hey, she was into fucking me, and then I took the condom off and stuck it in her ass before she knew what I was doing, and I didn’t know she wasn’t okay with that,” and that will be held to be reasonable, because people who should know better make excuses for people they like.  See generally Julian Assange and his defenders.  “Reasonable” inherently imports norms that may not work for people in their own lives.  If someone is trans or genderqueer and says, for example, “don’t touch my front hole,” I think that’s totally reasonable.  But someone who has a cis and heteronormative and penetrocentric framework for sex may decide that “reasonable” is the same as what they think “normal” is.  These are macro problems with how law operates; I offer no easy solution.
But it’s not just people whose gender or sexuality fall outside the mainstream who could find that the concept of “reasonable” fails them.  If a school were to decide that, “I asked if she wanted to come back to my room and she said yes” is reasonable inquiry and constituted a basis to assume consent to anything that happened thereafter, that would be a very bad standard.  Someone who wanted to exonerate every rapist who fit a certain socially comfortable paradigm probably could, just by applying the term “reasonable steps” to some action the rapist took or claimed to have taken.
That’s also the weakness of the ridiculous app that turned up in the news recently.  It makes no provision for withdrawal of consent (how could it?) and it makes little or no provision that I can see for sex to be something other than, “we do it in the way it looks in the movies.” So it’s useless for its intended purpose, and whatever its creator’s intent,  its actual function – I’ll go farther than Marcotte here –  is to create a defense that rapists can use later, after their targets realized that what was going to be done to them wasn’t what they were good with.
Subsection (a)(3)
Subsection (a)(3) imposes a “preponderance” standard, which is already the standard for civil liability in almost all areas, and the standard colleges have to use under the current Department of Education guidance federally, so that doesn’t change anything.
Subsection (a)(4)
Subsection (a)(4) says that there are three circumstances where, if you know this thing is true, you know the other person can’t consent: (a) unconscious; (b) too drunk or high to understand the “fact, nature or extent” of sexual activity; and (c) unable to communicate.  (a) and (c) don’t merit any discussion.  Unconscious people can’t consent, and if people are unable to communicate, you don’t know if they consent.  (b) is only slightly more elastic.  It imposes a standard for how drunk is too drunk to fuck.  Too drunk to know the fact of sexual activity is obviously too drunk to consent.  Too drunk to know the nature or extent of sexual activity requires some actual interpretation, as “nature” and “extent” don’t define themselves, but if someone is so messed up that they don’t know for example which hole a cock is in, they shouldn’t be having sex, and I think that’s the most obvious interpretation of what that means.
This Is Not A Revolution In Practice (But I Can See It From Here)
So that’s what it says.  It’s not a revolution in practice.  There are no heads in tumbrels and nobody is being carted to a reeducation camp.  From the howling, you might have surmised that this bill requires all Californians to get the late Andrea Dworkin’s permission to have sex, gently, while lying side by side, and only half way in.  That’s bullshit.  Under this standard, California’s college students are free to get their sex on any way they see fit, and communicate about consent any way that works for them.  It just clarifies that they can’t assume it, they have a responsibility to find a way to communicate about it.  That’s radical in theory, but pretty pedestrian in practice.
This is an evolution in concept.  It’s a very non-radical bill, imposing in a very careful and mainstream-friendly way what is a gradual and evolutionary paradigm shift.  But the evolution in paradigm is more important than the operation of the policies under this bill (in at most a few hundred conduct counsel proceedings) ever will be.  Just the cultural conversation about the bill has made Yes Means Yes, the idea of affirmative consent and sex as process, part of the mainstream national conversation.  The best defense of the old, Commodity Model, women as gatekeepers, paradigm was not to discuss it at all — but just to assume it.  It doesn’t hold up well to scrutiny.  It’s being dragged into the sunlight now, and in sunlight it withers because, quoting Brandeis, “sunlight is … the best of disinfectants.”
That’s why I don’t mind the people arguing against this bill.  By arguing, they are keeping the conversation going, and by doing that, they are losing.  If they were smart, which they are not, they’d ignore it and let the media die down, and push quietly for interpretations of the standard that don’t change anything.  But they’re not.  Like Todd Akin, they want to spew their extremism, their poorly informed and ideologically driven beliefs, their persecution complex and feverswamp paranoia.  So they’ll keep arguing, and if they keep arguing, the keep losing.
 Looking West into the future from here with the right kind of eyes I can see the arc bend.

Fraternity Roofie Conspiracy

September 19, 2014

This.

In some corners of the rape denial universe it is popular to say that this doesn’t happen, that all reports of drugged drinks are merely voluntary overconsumption.  There are two kinds of people who say that: (1) those who have chosen to believe it, because they don’t believe anything women say anyway and because it’s convenient for them to believe it; and (2) those who know first-hand that it isn’t true, but want to protect those who deliberately and involuntarily intoxicate others.

When people say, “rape culture,” some people say that there isn’t one.  Even some people who should know better say that. Everyone agrees that rape is bad, right?  But they don’t.  In the comments and threats that assail women who speak out about rape on the internet, when the trolls know people are unlikely to uncover their identities, they say what they really think.  They approve of rape.

These allegations admit of no possibility of accident or miscommunication. Instead, this required a conspiracy of the bartender and the doorman, at a minimum, and probably at least the silent complicity of several members. Someone said, “let’s roofie a bunch of girls …” and someone else thought it was a great idea.  As it became clear that someone wasn’t joking, but was actually planning and preparing, nobody, nobody, said, “no, actually that would be a felony and we cannot do that.”  If you want to know what “rape culture” is, it’s a culture where someone could raise this idea and instead of a chill falling over the whole room, the other people either strain to pretend it’s a joke or gleefully join in.  If you want to know what “social license to operate” is it’s that the idea that women at fraternity parties are targets to be intoxicated and sexually molested is so powerful that the guy that thought this up not only had friends willing to defend his idea, they agreed to help, and they believed that they would get away with it.

As a general moral proposition, to hell with loyalty. If you are ever so loyal to any person that, when that person says, “let’s rape someone,” it even occurs to you that going along with it is a viable option, your moral compass is shot and you need to cut all ties with every single person you know, pack up and walk as far as you can get into the most desolate wilderness until the ruinous effects of your social environment wear off and you once again develop the ability to hear your conscience.  You.  If you’re reading this now, and you’re thinking, “well, I don’t know, I might …”  Stop.  Stop, turn off the computer, and pick a spot on the map where nobody is, and go there.  Until you do, you’re a danger to us all.

Off To College Is Too Late For The Consent Talk

September 8, 2014

I am a fan, and a friend, of both Amanda Hess and Heather Corinna, and it should come as no surprise that I think this piece in Slate is really useful.  However, the preface to Amanda’s interview situates it with college back-to-school season.  From a news standpoint, this makes sense.  The US media is belatedly and rightly focused on colleges mishandling sexual assault (Emma Sulkowics’s performance art activism at Columbia is the latest story to get broad coverage). But from a parenting perspective, it’s an easy, comforting and wrong way to analyze it.

Heather Corinna, who has been down this road more times than I can count with interviewers much less savvy and receptive than Hess, positions consent and bodily autonomy as a lifelong process and a part of parenting that starts in the diaper stage.  Hess had the good sense to let Heather get her ideas out.  In my own parenting, I reached the same conclusion, and I started talking about consent with my own kids as toddlers, something I wrote about in this old post that recently went back into circulation after a Facebook page picked it up.

Good News/Bad News:

  • By the time kids are off to college or college aged, they may have established patterns and expectations for consent and communication that have already shaped their relationships and sexual development.
  • But getting in front of that curve doesn’t have to be uncomfortable, as it’s easy to make a fairly seamless transition from the kind of broad consent-and-autonomy discussion I wrote about in If She’s Not Having Fun You Have To Stop, to the kind of more express advice teens will need to navigate their own needs.

It’s Better To Be Early Than Late

I think it’s fair to say that a lot of young people experience a lot of partnered intimacy, kissing and more, years before they finish high school (though for various reasons big, public studies focus on penetrative sex and it’s hard to find good data on how kids develop to that point).  They’re working out on their own who kisses who, who puts their hands where, and even if they are not having intercourse or oral sex, they are forming expectations and patterns.  If we let them absorb a culture that boys initiate and girls gatekeep (the heteronormativity! The penetrocentrism! Do we even have a pop-culture paradigm for same-sex adolescent partners? For nonpenetrative intimacy that is a goal in itself and not a waystation? And we definitely don’t have pop-culture paradigms for anyone too far outside the mainstream … trans, non-binary, etc.) then it’s just blind luck whether they find the wherewithal to question that.  Of course as a parent I hope my kids will keep developing and changing right into adulthood, so maybe they can make use of things that I say in their late teens and twenties even if those things might have been more useful earlier.  I hope that, but I’d rather be out in front.

I think part of the reason that some parents don’t want to talk about consent and sexuality with their kids, or about reproduction and STIs with their kids, is the view that bringing it up sends the message that the parents think they are ready.  I think that’s a self-fulfilling prophecy — to the extent it sends that message, it means I didn’t start early enough!  Kids are going to hear and see references to things like pregnancy and condoms all through their lives.  If they hear, “you don’t need to know what that’s about” until their mid-teens, and then their parents suddenly say, “okay, I guess you’re old enough to hear this now,” well, they may take that as an indication that they’re the right age to make use of the information. I understand why that becomes fraught for a lot of parents.  If these things are treated as a matter of scientific inquiry, like why the sky is blue and why some birds nest on the ground, suitable for an explanation in age-appropriate detail at any time, then it sends no such message.

Folks with a certain set of cultural leanings seem to be integrating the notion that the one “big talk” model doesn’t work with sex, biology and safety.  Well, it doesn’t work with sexuality, relationships and consent, either.  A “big talk” will never time it right.  It will always be too early, or too late, or both.  I think in the age of the internet, kids less often live in an information vacuum.  Once, if a kid didn’t get an answer from adults, the only other option was friends, who were generally clueless.  Now, there’s an opposite problem: too much information, widely varied in quality and accuracy, slant and agenda.  Parents can’t keep their kids from getting information by refusing to answer questions.  They might as well say, “go look for the answer yourself and don’t tell me what you find,” because it has exactly that effect.

The Shallower the Slope, The Smoother the Ride

The way our children integrate consent into their lives has a learning curve.  I don’t know of anyone who thinks we should start teaching our kids about consent by talking about sex.  As Heather points out in the Slate interview, the first lessons in consent are about kids, privacy, autonomy and their own bodies.  We can teach them that they don’t have to give their uncle a kiss if it makes them uncomfortable, and that they can bathe themselves alone when they’re able.

Our children’s first experiences of negotiation don’t happen in the sheets; they happen over dolls and toys.  It’s a lot better to learn what’s making your needs known and what’s bullying your partner when the question is “do we play school, or alien robot attack.”  It’s a lot better, and it’s highly transferable.  The kid who thinks, “I have to play the space game that I don’t like because the other kid wants to” is not going to suddenly act differently with a prom date, and the kid who thinks, “anything I do to make them play my game is fair, because what I want is all that’s important” will think exactly like that after prom, too.  They will, unless we step up as parents.  I don’t believe it’s “helicopter parenting” to talk to our kids about how they play with each other.  I believe it’s helicopter parenting to jump in and direct them.  That’s counterproductive.  Giving them the solution keeps them from ever developing the skills, and it’s the skills that are the point.  But neither is a “life is tough on the savannah” approach good for all kids, and talking to them and guiding them about how they interact with their peers has always worked for me.

I think the way we can teach this stuff is to think about the big picture early, and start teaching the general principles long before our kids are thinking about dating and intimacy.  It’s easy to connect it back.

Think about what I might want to say to my kids about consent as teens.  Things I want them to know:

  • Yes means yes.  You should affirmatively make sure your partner is good with what you’re doing.
  • You have to be able to communicate about what you and your partner want in order for everyone to be happy and have fun.
  • There is no such thing as “working out a yes.”  Just because you can get someone to say, “okay, I’ll do what you want,” doesn’t mean they are into it or enjoying it, and it’s not fun unless it’s fun for everyone.

I don’t have to wait until they’re having sex to teach those values.  We don’t even have to be talking about sex for me to teach those values.  I can teach those values to kids old enough to ride bikes and play Minecraft.  I told my kids at two,  “it’s not fun unless it’s fun for everyone.”   I’ve already said,  “it’s not right to guilt-trip your friends into playing Minecraft because that’s what you want to do.” The moral principle doesn’t really change, so I’m dealing with the day-to-day of having friends over and having elementary school relationships.  But at the same time, I’m laying the groundwork for the conversations I’m going to have with them as teens:  whatever you do with your partners, it’s not okay unless it’s good for everyone.  If someone’s not having fun, you want to make space for them to say they want to stop, and you have to listen and respect that.  You have to talk to each other about what you want to do so you’re both having fun.  Just because you can get someone to say, “okay, I’ll do what you want” doesn’t mean they’re really into it.  The principles are basic life lessons about being fair to other people, and expecting that people are fair to us.  Only the details change with age.

Values Are Inherited

Our culture makes a big deal about adolescent rebellion, and by doing so convinces people it’s the norm, when in fact people generally adopt their parents’ values to a large extent.   Popular culture focuses on the exceptions mostly to give voice to parents’ fears.  But what usually happens is that your kids pay more attention to what you believe than you appreciate at the time.  They hear everything you say … including “put away your laundry” and “clean your room.”  (Getting them to do it is beyond the scope of this post.  And, sometimes, my capabilities.)  They see what you do, they hear what you say, and they integrate it so much that, whether they adopt it or reject it, it’s part of them.

And there’s the problem.  They see us more clearly sometimes than we see ourselves, and if we’re full of shit, they feel it even if they can’t articulate it.  If the way somebody thinks about sex and consent is that boys will always push for whatever they can get and girls are either the “good kind” or the “bad kind,” they are going to have a hard time communicating something different to their kids.  People who think that “some girls” are “asking for it,” raise daughters who can’t tell their parents if someone does something they didn’t agree to.  People who think that girls say no when they mean yes, at best, will teach their sons to ignore anything that is a soft refusal right up until they’re sure they’ll get in trouble.  Those attitudes pop up in the comments on anything about rape.  Those trolls are not all antisocial teens or loners living in isolation.  Some of those comments are from parents who show up at my school’s PTA meeting; that’s what they say when they don’t have to stand by it, and that’s what their kids will sense, and my kids are going to have to deal with that.

Protect Yourself At All Times

Feminists call out almost any attempt to shift a discussion of rape onto what the survivor could or should or might have done as victim blaming.  Because it is.  And feminists usually jump on every discussion about how women should restrict themselves to “prevent” themselves from getting raped, because it takes the focus off the rapists, and because it’s not effective, and because it’s not fair.  That’s correct.  And people sometimes respond by saying, “are you saying there’s nothing we can do?”  Well, I do know something we can do.  And it’s not teaching my daughter self-defense (though there are other reasons to do that, and the physical confidence that comes with it is a positive, etc.)

The most important thing to teach our kids is to respect their own boundaries as much as they respect others’, and respect others’ as much as they respect their own.  The way the culture works to create victims, the most effective way, is by gradually telling some people that they have to go along with things they don’t want.  There’s more to it, of course.  Abusers have ways of finding kids who lack supportive adults, who are cut off and vulnerable and won’t be listened to; all that is complex and not what this post is about.

This classic from Harriet J. says it best:

[W]omen are raised being told by parents, teachers, media, peers, and all surrounding social strata that:

it is not okay to set solid and distinct boundaries and reinforce them immediately and dramatically when crossed (“mean bitch”)

it is not okay to appear distraught or emotional (“crazy bitch”)

it is not okay to make personal decisions that the adults or other peers in your life do not agree with, and it is not okay to refuse to explain those decisions to others (“stuck-up bitch”)

it is not okay to refuse to agree with somebody, over and over and over again (“angry bitch”)

it is not okay to have (or express) conflicted, fluid, or experimental feelings about yourself, your body, your sexuality, your desires, and your needs (“bitch got daddy issues”)

it is not okay to use your physical strength (if you have it) to set physical boundaries (“dyke bitch”)

it is not okay to raise your voice (“shrill bitch”)

it is not okay to completely and utterly shut down somebody who obviously likes you (“mean dyke/frigid bitch”)

If we teach women that there are only certain ways they may acceptably behave, we should not be surprised when they behave in those ways.

And we should not be surprised when they behave these ways during attempted or completed rapes.

Our culture bombards our girls, especially, with lessons that they can’t set boundaries and expect them to be respected.   We shouldn’t be surprised when many rape survivors say they froze and just tried to shut down and hope it ended soon, or that afterwards they didn’t know what to call it or what to do about it – not making a fuss is the demand so much of our culture makes on girls and women.    Calling it rape, treating it like a violation, when it’s about to happen, or while it happens, or in the immediate aftermath, is an act of will that many survivors can’t just tap into.

Our culture teaches boys some terrible lessons, too, and I don’t just mean the ones about ignoring what their partners say or do.  I mean the ones boys learn about ignoring what they want, about putting the culture’s expectations about how they “should” be ahead of what they themselves want.  I mean the messages that cause people to ignore the sexual abuse of juvenile inmates when the abusers are women, the ones that allow women who molest boys to tell everyone, including probably themselves, that it’s okay because boys always “want it,” I mean the messages that make it hard for grown-ass men to say to their partners that they’re ever not in the mood.  That’s real, too, and it’s really about the same thing, when you get right down to it.  It’s about boundaries and whether we have a right to them.

We can do better with the next generation.  No matter how overwhelming the culture around us seems, there is a time in our kids’ lives when their parents are the most important people in their world and we can teach them — if we believe it, if we commit to it — that their boundaries mean something, that they don’t owe anyone access to their bodies, that if something feels wrong it’s okay to want to stop, it’s okay to need to stop, it’s okay to say stop, and it’s okay to expect to be listened to.  We can teach that.  If we tell them, and if we believe it, they’ll believe us.

The kind of self-defense I can give my kids is the belief that they have a right to set their boundaries, and that so does everyone else.  If they feel wrong, if they have the sudden urge to put their clothes back on and leave, then they should and they absolutely can — that’s real self-defense, the kind that matters.  And the great thing is that if they know that for them, they learn it for their partners, too.  I don’t have to wait until they’re packing for college to have that talk.  I started teaching that in preschool.

 

Bagley All Over Again?

June 6, 2014
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Another criminal prosecution arising from abuse in a kinky relationship.  There are so few facts thus far that I won’t write much, but this is on my radar.

I don’t know why the report even notes that she’s trans.  In fact, after the first paragraph, they follow the sensible rule for avoiding shitty trans coverage tropes:  if it’s irrelevant to the story, don’t bring it up.  But that fact, her trans status without more, appears in the headline and first paragraph, perhaps for no reason other than clickbait, or because while the style guidelines say that trans women are women, some reporter or editor couldn’t bring themselves to apply that without an implied asterisk.  At least after mentioning it they left it alone, so that’s progress because the bar of better-than-usual is pretty low.

I’ve said before that the only way kink-abuse cases get prosecuted is if there is hospitalization or video; reading between the lines, I think we’ll find out that video evidence was seized.

There are screeds coming.  In the course of this, as more facts develop, I expect I’ll write about the slave register site and the positioning of 24/7 and TPE within BDSM communities and spaces, like I do.  I expect I’ll write about the application of trafficking laws to situations where people are literally not free to leave.  I expect I’ll write about press coverage of her trans status, though I hope I don’t; maybe if it’s not relevant as the story develops, they could just leave it alone?  Perhaps, but I doubt it.  All these conversations will wait until the factual record is more developed.

I’d rather not write about this.  It’s not exactly fun.  I’d rather not, but the things I expect I’ll say, I’m not counting on anyone else to say.  So I will.

Guys, Can We Please, For Two Weeks …

May 30, 2014
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I blew my stack on Facebook this morning, after reading one of the many threads where women are trying to have a conversation around the Isla Vista shooting and the #YesAllWomen hashtag campaign.  I blew my stack because there are two things derailing these conversations.  One is misogynist men trying deliberately to derail, deny and distract.  The other is men who want to do the right thing, who mean well, but who feel the need to insert their insecurities, their disclaimers and clarifications and make the conversation about their feelings.

Here’s what I said:

JESUS CHRIST SHUT UP AND LISTEN. IF YOU ARE A MAN RIGHT NOW DO NOT TALK OVER WOMEN. AT ALL. SPEAK ONLY AMONG MEN about whatever you think your valid point is that you so desperately need to hear yourself say and just SHUT THE FUCK UP. Why have I not written about Rodgers? BECAUSE MEN NEED TO SHUT THE FUCK UP AND LISTEN. Two weeks. Just shut your fucking facehole for two weeks. NO! Zip! It! If it’s that fucking brilliant, it will be brilliant in two weeks.

But I know, because women who want the same kind of change that I want are telling me, that if you and me and the guys who care duck out of the conversation for two weeks, we’re only leaving the field in possession of the enemy and abandoning the people we want to support.  If you care enough about what I think to follow my example if I decided to stay silent, you’re actually the guy who should stay in the conversation.

But just because we’re talking doesn’t mean we’re helping, and right now I think to help, I have to be willing to do some really specific stuff.  Here’s what I think I have to do:

(1) Not talk about my insecurities when women are trying to talk about their struggle.

(2) Signal-boost the women who are saying important stuff.

(3) Shut down, shout down, and push back at misogynists who are trying to make the conversation not happen.

So if you care what I think, I’m asking you to do this with me.  Women need to let the anger and fear and frustration  speak now, to know that we’re listening; and we need to hear it.  Lots of us are going to have that queasy, “she thinks that might be me, and that’s totally not me” feeling.  Here’s what I want to do:  just lock that down and keep in on ice until June 13.  Don’t do the “not all men” thing, not even a little; don’t say it.  Live the example, stand by the women you support and don’t let your insecurities get in the way.  Let them know you by your works.  If I need to vent about my feelings, I’ll do that in private with friends, not where the public conversations are happening.

Everything I write in public about Isla Vista or Rodger or masculinity, misogyny or entitlement for the next two weeks, I’m going to ask myself, “is this helping my women friends have their conversation?”  If not, I can change it, or I can hold it.

We need men to talk about how we feel about manhood and violence and the reality of rapists and abusers among us and in our social circles and families, out own sexuality and consent and all the nuanced and complex stuff.  We need that, but not today, not right now, not in the immediate aftermath of a guy planning to slaughter a sorority and trying to do it.  The nuances that men’s experiences add will still be valuable in two weeks; women need two more weeks to talk about the things that scare them out of their minds and the shit they have to live with, and they need us to clear the way for them; not engage to qualify, explain and redirect.

I have a small but influential social circle and readership, and I see a lot of really good stuff that’s being said and written right now, especially stuff by women talking about their own experiences, and I’m going to popularize the good stuff and let it speak for itself.

What I’m not going to do is leave the assholes in charge of the conversation.  I’m going to point out their agendas, their distortions and lies.  I know my skillset, and smacking people around on social media, litigating issues, and showing the bystanders that these people are wrong factually and morally; that I can do.  That’s not about me.  That’s about pushing back on their bullshit so the women who are trying to have the conversation in public spaces right now feel our support.

If I have something to say about my feelings and my masculinity and how this affects me, if that’s so damned brilliant that I should share it with the world, it will still be worth sharing later.  I can keep that on ice until June 13.  Two weeks.  It’s not about me for two weeks.  That’s not much to ask.

So I’m asking.  Not about me, not about us, just support and defend the conversation that is happening, for two weeks.

Reporting Rape: More On The “Proper Authorities”

May 21, 2014
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I’ve written more than a little lately about how rape survivors reporting to “the proper authorities” get stonewalled, abused and ignored.  I wish I had said all that needed to be said about that.  I have not.

[Content note, graphic description of the rape included]

Today’s story is about one particular survivor’s experience.  She’s using her name, and she refuses to be ashamed.  She is Emma Sulkowicz.  She took her complaint to the “proper authorities.”

The Administration

First, Sulkowicz went to the Columbia University administration, then the NYPD.  What happened?

  • Her best friend and chosen support person was disciplined by the school for talking about the rape in violation of Columbia’s nondisclosure policy- that is, their silencing rule.
  • The friend was required to write a “reflection paper” from the rapist’s point of view.
  • The university found the rapist not responsible, though she testified that he pinned her down and forced his penis into her anus with no lubrication.

He was found not responsible, so why do I think he raped her?  At least one other woman independently reported the man to the university for sexual assault, according to the story I linked, but other sources say there are at least two other women who reported him.  There’s rarely one roach in the cupboard, and most rapes are committed by serial rapists.

The Columbia Spectator has published his name.  They explained their reasons here.  He is reportedly one of the names that appeared on the fliers and graffiti at Columbia.  Jezebel has also published his name.

The NYPD

So after Columbia’s bullshit process failed her, she reported to the NYPD.  How did they treat her?  The police officer who reported to the scene, according to the Al Jazeera story, told her: You invited him into your room. That’s not the legal definition of rape.”  

You can read the story for the rest of what the NYPD did, but I want to bold that part.  This is a sworn police officer, making a statement that’s appalling not only culturally, but in its sheer, astounding legal ignorance.  The cop, at least according to the account in the Al Jazeera story I linked above, purported to make a statement about “the legal definition of rape” and just made up some good-girls-don’t moralizing bullshit where rape can only be illegal if it’s done by a stranger in a dark parking lot.  In addition to the cruelty and dismissiveness, the incompetence is breathtaking.

(Just for a grim, angry laugh, I’ll include here the actual statute:

§130.35 Rape in the first degree.

A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

  1. By forcible compulsion; or
  2. Who is incapable of consent by reason of being physically helpless; or
  3. Who is less than eleven years old; or
  4. Who is less than thirteen years old and the actor is eighteen years old or more.

I don’t see anything in there about inviting the rapist to one’s dwelling.)

The Columbia Spectator story adds details:  she had had consensual sex with him earlier that night, but then he strangled her and anally penetrated her, which she told the police she did not consent to.

Sulkowics says to survivors, “If you want to go to the police, this is what to expect: You’ll be verbally abused. But at least no one will yell at you for not going to the police and getting verbally abused. Just take your pick.”  But it’s not only survivors like her expressing the view that the system isn’t working for rape survivors.  David Lisak,* the psychologist who started the research into undetected rapists and who regularly advises college administrators on rape, said that law enforcement has hundreds of years of history where any survivor without cuts, bruises or broken bones could expect nothing from reporting.  

I want to be fair to the people in the system here.  What we know so far is that Sulkowics said that her experience was searing and emotionally abusive.  We don’t know that they won’t do anything.  She just reported.  It is possible that the police are investigating, and despite the way Sulkowics was treated, they will find multiple victims, put together a case and prosecute.  It’s early enough to say that the way the police treated Sulkowics explains why many survivors don’t report.  It is too early to say they didn’t do anything.

The Judge

Sulkowics’s complaint, like that of almost all survivors, has never reached the punishment stage.   Columbia had at least two and possibly three reports about the same man but let him go.  The police report was recent, just days ago, and perhaps they will still make an arrest, but have not yet.

But even when a survivor reports to the police, the police make an arrest, the prosecutors file charges, go to trial and the jury convicts, it doesn’t mean that the rapist will actually go to prison.

In Indiana, David Wise drugged his wife without her knowledge, raped her, and filmed it.  Not once, but as a pattern for three years!  You would think that a person capable of this conduct – planned, premeditated, and keeping souvenirs — would be deemed so dangerous that any right-thinking judge would want him behind bars for a very long time.  But the judge, elected Marion County Superior Court judge Kurt Eisgruber, sentenced him only to home confinement.  By the way, he’s up for reelection this November.

Systems Are Made Of People

Police are people.  Administrators are people.  Judges, jurors, prosecutors … all people.  The laws are interpreted and applied by people, who bring to them their prejudices.  In a racist culture, the most perfectly written law will be applied and enforced in racist ways.  In a culture that refuses to take rape seriously, no matter what the statutes say, the actual behavior of the people who interpret and enforce those laws will reflect the refusal to take it seriously.  First degree rape is a Class B felony in New York, a really serious crime.  People in the system are simply not willing to say that that applies to people who don’t fit their preconceived notions, and there is no magic bullet to change that.  Changing the statute, training the police, giving the administrators incentives for transparency, there are lots of things to be done and not one of them alone will make all that much difference.  The rapists’ social license to operate is woven deeply into the fabric of how people think the world works: it is a specific set of threads in a very big and interconnected piece of culture.  Pulling them out, pulling them all out, one at a painstaking fucking time, is the work.  That’s what we have to do, and if anyone tells you otherwise, they’re not serious.

*I’ve done a great deal to popularize Lisak’s research both into the identity and methods of rapists who have not been caught.  It has filtered back to me that some people assume that I think everything he says is right, or that I somehow generally endorse him.  I don’t.  I don’t know him, I’ve never met him, I have not spoken with him, and I don’t have a good handle on what he tells consulting clients when the doors are closed.  He puts on his pants one leg at a time just like the rest of us.

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